Peninsula Securities Limited v Dunnes Stores (Bangor) Limited
| Jurisdiction | Northern Ireland |
| Judge | Stephens LJ |
| Judgment Date | 2018 |
| Neutral Citation | [2018] NICA 7 |
| Date | 09 February 2018 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2018] NICA 7
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: STE10525
Delivered: 9/2/2018
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
PENINSULA SECURITIES LIMITED
Appellant;
and
DUNNES STORES (BANGOR) LIMITED
Respondent.
________
Before: STEPHENS LJ, SIR RONALD WEATHERUP and
SIR RICHARD McLAUGHLIN
STEPHENS LJ (delivering the judgment of the court)
Introduction
[1] This appeal concerns the question as to whether the doctrine of restraint of
trade applies to a restrictive covenant contained in a lease dated 2 February 1981
(“the restrictive covenant”) relating to adjoining land retained by the lessor. The
enforcement of contractual terms or of restrictive covenants, if they restrain trade,
are in certain circumstances subject to the doctrine so that they are enforceable only
if reasonable with reference to the interests of the parties concerned and of the
public. The learned trial judge (“the judge”) in a carefully considered reserved
judgment held that the doctrine did not apply to the restrictive covenant and this
appeal is from that order. There is also a respondent’s notice seeking to uphold the
order on grounds not relied on by the judge.
[2] The lessor, Mr Patrick Shortall, a property developer, was the freehold owner
of some 5½ acres of land contained in folio 25992 Co Londonderry (“the folio”)
which lands he wished to develop as a shopping centre and for which proposed
development he secured Dunnes Stores (Bangor) Limited as an anchor tenant in
order to draw shoppers and therefore other potential tenants to the centre. The lease
to Dunnes Stores (Bangor) Limited, which demised some 1.05 acres for a term of 999
years, contained the restrictive covenant that for that term any development on the
lessor’s remaining lands which comprised some 4 ½ acres “shall not contain a unit in
size measuring 3,000 sq ft or more for the … purpose of trading in textiles,
provisions or groceries in one or more units.” On 27 April 1983 ownership of the
freehold in the folio was conveyed by Mr Shortall to Peninsula Securities Limited a
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1 cases
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North West bookmakers Ltd t/a Ladbrookes and Gala Case Ltd t/a Toals Bookmakers
...test. [38] I reject this argument for a number of reasons. Firstly, the NICA in Peninsula Securities Ltd v Dunnes Stores (Bangor) Limited [2018] NICA 7 overruled the lower court’s decision and held that there was no reason why the doctrine should not apply to successors in title. Although l......